RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/181 
2 February 2005 
 (05-0424) 
Dispute Settlement Body 
14 January 2005  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 14 January 2005  
 
Acting Chairperson:  Mrs. P uangrat Asavapisit (Thailand) 
   
 Prior to the adoption of the agenda
, Amb. Puangrat Asavapisit welcomed delegations and said 
that she had the honour to chair the present meeting at the request of the Chairperson of the DSB, 
Amb. Amina Mohamed, who was currently absent from Geneva.  This was, of course, in accordance 
with the Rules of Procedure for meetings of the DSB, which provided that if the DSB Chairperson 
was absent from any meeting or part thereof, the Ch airperson of the General Council, or in the latter's 
absence, the Chairperson of the Trade Policy Review  Body, shall perform the functions of the DSB 
Chairperson.    Subjects discussed
: Page  
 
1. United States - Final countervailing duty  determination with respect to certain 
softwood lumber from Canada................................................................................................2  
(a) Recourse to Article 21.5 of the DSU by Canada:  Request for the establishment of a panel ......................................................................................................................... ..................2
 
2. United States - Final countervailing duty  determination with respect to certain 
softwood lumber from Canada................................................................................................3  
(a) Recourse to Article 22.2 of  the DSU by Canada .......................................................................3  
3. United States – Sunset reviews of anti-dumping measures on oil country tubular 
goods from Argentina........................................................................................................... ....3 
(a) Statement by the United States regarding implementation of the recommendations 
and rulings of the DSB......................................................................................................... .......3  
 WT/DSB/M/181 
Page 2  
 
 1. United States - Final countervailing duty de termination with respect to certain softwood 
lumber from Canada 
(a) Recourse to Article 21.5 of the DSU by Canada :  Request for the establishment of a panel 
(WT/DS257/15) 
1. The Chairperson
 drew attention to the communication from Canada contained in document 
WT/DS257/15 and invited the representative of Canada to speak. 
2. The representative of Canada  said that on 17 February 2004, the DSB had adopted the 
Reports of the Panel and the Appellate Body in  the dispute "United States – Final Countervailing 
Duty Determination on Softwood Lumber".  The Panel and the Appellate Body Reports had found 
that the United States was in violation of its WTO obligations in respect of the alleged "pass-through" 
of subsidies and had recommended that the United St ates bring its measures into conformity with its 
obligations under the GATT 1994 and the SCM Agreement.  At the 17 December 2004 DSB meeting, the United States had reported that the US Departme nt of Commerce had issued a new determination, 
which had found that certain subsidies did not pass through and that it had revised the subsidy rate 
accordingly.  The United States had asserted that this determination had implemented the DSB's 
recommendations and rulings.  Canada  considered that the United Stat es had failed to comply with the 
DSB's recommendations and rulings.  The United States continued to impose countervailing duties 
based on a presumption, rather than a demonstration,  of the existence of alleged subsidies.  The 
United States, therefore, continued to violate its obligations under both the GATT 1994 and the SCM 
Agreement.  In the light of the US failure to bri ng its measures into conformity with its obligations, 
Canada sought recourse in this matter to dis pute settlement under Article 21.5 of the DSU. 
3. The representative of the United States
 said that his country regretted that Canada had chosen 
to request the establishment of a compliance pane l under Article 21.5 of the DSU, as set out in 
document WT/DS257/15, with respect to the measures taken by the United States to comply with the DSB's recommendations and rulings in this disput e.  The United States had fully implemented these 
recommendations and rulings within the agreed pe riod of time, and, indeed, had issued a new 
countervailing duty determination with respect to  softwood lumber from Canada prior to the 
17 December 2004 expiration of the reasonable period of time.  The United States disagreed with Canada's assertion that this ne w determination was not consistent  with the SCM Agreement and the 
GATT 1994.  In addition, Canada c ited other so-called "measures" in its Article 21.5 request that it 
claimed "were allegedly taken by the United States to comply with the DSB's recommendations and rulings".  Canada alleged that these "measures" were  also inconsistent with the SCM Agreement and 
the GATT 1994.  They were the original countervaili ng duty determination and order, the final results 
of the first administrative review of the count ervailing duty order, and an issues and decision 
memorandum in connection with that first administra tive review proceeding.  However, contrary to 
Canada's allegations, these so-called "measures" were not "measures taken to comply with the 
recommendations and rulings" of the DSB in this disp ute.  To the contrary, the original countervailing 
duty determination and order – pub lished in mid-2002 – were the subject of the original dispute.  
They were clearly not measures taken to comply with the recommendations and rulings adopted on 
17  February 2004.  Further, the first administrativ e review cited by Canada was a separate proceeding 
with a separate administrative record that covere d different importations fro m those analyzed in the 
determination at issue in the original dispute.  Mo reover, this administrative review had been initiated 
at the request of Canada, among ot hers, in mid-2003.  The results of that review, as well as any 
associated decision or issues memoranda, were, therefor e, also not measures taken to comply with the 
17 February 2004 recommendations and rulings.  Fo r all of these reasons, the United States 
considered that Canada's request for a comp liance panel was unnecessary and without basis. 
Nonetheless, pursuant to the agreem ent between the United States and Canada that had recently been 
submitted to the DSB for circulation to Members, the United States would accept the establishment of 
a panel at the present DSB meeting.  WT/DSB/M/181 
 Page 3 
 
 
 4. The DSB took note  of the statements and agreed , pursuant to Article 21.5 of the DSU, to refer 
to the original Panel, if possible, the matter rais ed by Canada in document WT/DS257/15.  The panel 
would have standard terms of reference. 
5. The representative of the European Communities  reserved third-party rights to participate in 
the Panel's proceedings.  
2. United States - Final countervailing duty de termination with respect to certain softwood 
lumber from Canada 
(a) Recourse to Article 22.2 of the DSU by Canada (WT/DS257/16) 
6. The Chairperson  drew attention to the communication from Canada contained in document 
WT/DS257/16, and invited the representative of Canada to speak. 
7. The representative of Canada  said that his country was also requesting authorization from the 
DSB, pursuant to Article 22.2 of the DSU, to su spend the application to the United States of the 
concessions or other obligations in  an amount to be established yearly, an amount which would be 
equivalent to the level of nullifications and im pairment caused by improper US implementation.  
Canada wished to inform the DSB that it had ente red into an agreement with the United States that 
provided that any proceedings pursuant to Article 22.6 of the DSU would be suspended until adoption 
by the DSB of the recommendations and rulings in the Article 21.5 compliance proceedings Panel that 
had just been established.  
8. The representative of the United States  said that his country regretted that Canada had 
requested authorization to suspend concessions or other obligations in this dispute in document 
WT/DS257/16.  As noted in the US intervention unde r the previous agenda item, the United States 
had fully implemented the DSB's recommendations and rulings prior to the expiration of the agreed-
upon reasonable period of time.  Therefore, on 13 January 2005, the United States had informed the 
DSB by letter that, pursuant to Article 22.6 of the DSU, the United States objected to the levels of 
suspension of concessions proposed by Canada.  U nder the terms of the DSU, the filing of this 
objection automatically resulted in the matter being referred to arbitration, and no further action was 
required of the DSB.  Indeed, Article 22.6 of the DSU did not refer to any decision by the DSB.  
Consequently, the matter was already being referred to  arbitration. Nevertheless, the United States 
had no objection if the DSB wished to take note of  that fact and confirm that it might not consider 
Canada's request for authorization, which was on th e agenda of the present meeting, since the matter 
had been referred to arbitration.  The United States  wished to add that, pursuant to an agreement 
between the United States and Canada, once the ar bitrator was constituted, the United States and 
Canada would request the arbitrator to suspend its  proceedings until the completion of the Article 21.5 
proceedings.  The United States was confident that s hould the arbitrator ever have to consider the 
matter, it would find that the US objections to  Canada's proposed actions were well-founded. 
9. The DSB took note  of the statements and it was agreed  that the matter raised by the United 
States in document WT/DS257/17 is referred to arb itration, as required by Article 22.6 of the DSU. 
3. United States – Sunset reviews of anti-dumpi ng measures on oil country tubular goods 
from Argentina 
(a) Statement by the United States regarding impl ementation of the recommendations and rulings 
of the DSB 
10. The representative of the United States , speaking under "Other Business", said that his 
country intended to implement the recommendations  and rulings of the DSB in a manner that WT/DSB/M/181 
Page 4  
 
 respected US WTO obligations, and it had begun to ev aluate options for doing so.  The United States 
would need a reasonable period of time in which to implement.  The United States stood ready to consult with Argentina regarding a reas onable period of time to implement. 
11. The representative of Argentina
 said that, first of all, his delegation wished to express concern  
that the statement of intentions in respect of  implementation of the DSB's recommendations, which 
was an obligation under Article 21.3 of the DSU,  had been placed on the agenda of the present 
meeting under "Other Business", instead of being treat ed as a main agenda item.  In Argentina's view, 
this was not consistent with the practice follo wed by Members in the DSB, and constituted an 
inappropriate way of dealing with the obligation un der Article 21.3 of the DSU.  He noted that under 
"Other Business" only non-substantive matters could be  included.  Argentina believed that this set an 
unfortunate precedent from a systemic point of view, and did not reflect the importance that should be 
attached to statements of intentions ma de pursuant to Article 21.3 of the DSU. 
12. With regard to the substance of the statem ent made by the United States at the present 
meeting, Argentina wished to make the following comments.  Argentina hoped that the United States, 
as it had previously stated, stood ready to approach , in a spirit of good faith, the discussions necessary 
for allowing rapid implementation of the DSB's ruli ngs and recommendations.  Both the Panel and the 
Appellate Body Reports contained findings to the e ffect that the sunset reviews carried out by the 
United States were inconsistent with Article 11.3 of the Anti-Dumping Agreement, the substantive 
standard in that area.  Argentina understood th at, in the context of the present case, effective 
implementation by the United States must begin with the immediate lifting of its measure imposed nine years ago, which had been found to be WTO-in consistent.  Argentina stood ready to enter, as 
soon as possible, into discussions with the United States on a reasonable period of time, in accordance 
with paragraph (b) of  Article 21.3 of the DSU. 
13. The representative of the United States
 said that his delegation had taken note of Argentina's 
statement and wished to simply note that Article 21. 3 of the DSU stated that: " At a DSB meeting held 
within 30 days after the date of adoption of the panel or Appellate Body report, the Member 
concerned shall inform the DSB of its intentions in respect of implementation of the recommendations 
and rulings of the DSB".  As such, Members were  currently at a DSB meeting and moreover, the 
meeting was taking place within 30 days of the ad option of the DSB's recommendations and rulings, 
and so his country had stated its intentions.  The United States did not see any reference in 
Article 21.3 of the DSU regarding the need for a separ ate DSB agenda item in order to deal with this 
matter.  
14. The representative of Argentina  said that it was Argentina's position, based on Rule 25 of the 
Rules of Procedure for Meetings of the DSB, th at under "Other Business" a debate on substantive 
issues should be avoided.  Furthermore, in Argentin a's view, the requirement under Article 21.3 of the 
DSU was  a substantive obligation.  
15. The representative of India  said that his delegation wished to  add its voice to what Argentina 
had just stated about bringing such matters before  the DSB for discussion under "Other Business".  He 
noted that what Argentina had been referring to  was the DSB practice since there was no specific 
requirement in the DSU provisions for not bringing such substantive matters under "Other Business".  
He wished to emphasize that substantive matters, which should be known to Members in advance  to 
enable them to prepare to respond in DSB meeti ngs, should be placed on the agenda through proper 
notices.  This was the practice and that practice should be continued.  He noted that India had 
expressed a similar concern on another issue whic h had also been brought before the DSB under  
"Other Business".  For that reason, India supporte d the statement made by Argentina at the present 
meeting.  WT/DSB/M/181 
 Page 5 
 
 
 16. The representative of the United States  said that taking into account the fact  that  there should 
be no substantive debate on this issue at the present meeting, it would be appr opriate to read Rule 25 
of the Rules of Procedures in its entirety:  "R epresentatives should avoid unduly long debates under 
'Other Business'.  Discussions on substantive issu es under 'Other Business' shall be avoided and the 
General Council shall limit itself to taking note of  the announcement by the sponsoring delegation, as 
well as any reactions to such an announcement by other delegations directly concerned". 
17. The DSB took note  of the statements.   
 Prior to closure  
 18. The representative of Canada
 said that he wished to put on the record the fact that at the 
request of Canada, the WTO had opened for one da y during the Christmas holidays, and that some 
members of the WTO Secretariat had been called b ack from vacation to allow Canada to file its 
notices in relation to the present meeting.  He commended the professionalism of the WTO Secretariat and wished to convey that publicly and on the record. 
 The DSB took note
 of the statement.    
 
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